Stafanpolus KG, Limited Liability CompanyDownload PDFPatent Trials and Appeals BoardOct 20, 20202018007632 (P.T.A.B. Oct. 20, 2020) Copy Citation UNITED STATES PATENT AND TRADEMARK OFFICE UNITED STATES DEPARTMENT OF COMMERCE United States Patent and Trademark Office Address: COMMISSIONER FOR PATENTS P.O. Box 1450 Alexandria, Virginia 22313-1450 www.uspto.gov APPLICATION NO. FILING DATE FIRST NAMED INVENTOR ATTORNEY DOCKET NO. CONFIRMATION NO. 14/085,800 11/21/2013 Robert J. Pressini 43046/0603 1069 105758 7590 10/20/2020 Laurence & Phillips IP Law 7327 SW Barnes Road #521 Portland, OR 97225-6119 EXAMINER ADE, OGER GARCIA ART UNIT PAPER NUMBER 3627 NOTIFICATION DATE DELIVERY MODE 10/20/2020 ELECTRONIC Please find below and/or attached an Office communication concerning this application or proceeding. The time period for reply, if any, is set in the attached communication. Notice of the Office communication was sent electronically on above-indicated "Notification Date" to the following e-mail address(es): docket@lpiplaw.com mphillips@lpiplaw.com mphillips_patlaw@yahoo.com PTOL-90A (Rev. 04/07) UNITED STATES PATENT AND TRADEMARK OFFICE ____________ BEFORE THE PATENT TRIAL AND APPEAL BOARD ____________ Ex parte ROBERT J. PRESSINI, WILLIAM D. DUNLAVY, and RONALD S. SORENSON ____________ Appeal 2018–0076321 Application 14/085,800 Technology Center 3600 ____________ Before ANTON W. FETTING, BRUCE T. WIEDER, and AMEE A. SHAH, Administrative Patent Judges. FETTING, Administrative Patent Judge. DECISION ON APPEAL 1 Oral arguments were presented July 7, 2020. Appeal 2018-007632 Application 14/085,800 2 STATEMENT OF THE CASE2 Robert J. Pressini, William D. Dunlavy, and Ronald S. Sorenson (Appellant3) seeks review under 35 U.S.C. § 134 of a final rejection of claims 21–40, the only claims pending in the application on appeal. We have jurisdiction over the appeal pursuant to 35 U.S.C. § 6(b). The Appellant invented a way of increasing forecast accuracy by disambiguating point of sale data. Spec. para. 1. An understanding of the invention can be derived from a reading of exemplary claim 21, which is reproduced below (bracketed matter and some paragraphing added). 21. An apparatus comprising: [1] a point-of sales (POS) feed interface configured to receive historical sales data from at least one POS device, wherein the historical sales data includes sales data that are respectively associated with at least one differentiated sales category; [2] a filtering logic circuit[4] configured to remove sales data associated with at least one predetermined sales category 2 Our decision will make reference to the Appellant’s Appeal Brief (“App. Br.,” filed January 9, 2018) and Reply Brief (“Reply Br.,” filed July 18, 2018), and the Examiner’s Answer (“Ans.,” mailed May 18, 2018), and Final Action (“Final Act.,” mailed August 11, 2017). 3 We use the word “Appellant” to refer to “applicant” as defined in 37 C.F.R. § 1.42. The Appellant identifies the real party in interest as Stafanpolus KG, Limited Liability Company (Appeal Br. 1). 4 The Specification and originally filed claims neither mention nor describe circuits per se. Appeal 2018-007632 Application 14/085,800 3 and to produce scrubbed data; and [3] an indexing[5] logic circuit configured to, based at least in part upon the scrubbed data, allocate a portion of an undifferentiated sales category to each differentiated sales category. Claims 21–40 stand rejected under 35 U.S.C. § 101 as directed to a judicial exception without significantly more. ISSUES The issues of eligible subject matter turn primarily on whether the claims recite more than abstract conceptual advice of results desired. FACTS PERTINENT TO THE ISSUES The following enumerated Findings of Fact (FF) are believed to be supported by a preponderance of the evidence. Facts Related to Appellant’s Disclosure 01. Forecasts produced by software programs are only as accurate as the data provided to them. One difficulty in obtaining accurate data is due to the fact that the sale of certain items can be recorded in different ways by a point-of-sale device (e.g., cash register). Spec. para. 4. 02. Point-of-sale data that include both individual item sales and undifferentiated, miscellaneous or variety item sales are ambiguous and typically result in inaccurate forecasts. 5 An index in this context refers to a fraction or percentage contribution of an individual item to the sales of an associated miscellaneous group item. See FF 03. Appeal 2018-007632 Application 14/085,800 4 Accordingly, a need exists for a technique for disambiguating point-of-sale data to enhance forecasting accuracy. Spec. para. 5. 03. An item index is a fraction or percentage contribution of an individual item to the sales of an associated miscellaneous group item. Spec. para. 32. 04. Scrubbing data is similar to masking or removing data. Spec. paras. 31 and 36. ANALYSIS None of the claims are nominal process claims. All are nominal apparatus and system claims. All of the claims are substantively process claims, however, because all claims recite only nominal structure labels with no structural limitations. Instead, the limitations are all functional, expressed as process steps performed by the structure labels. Even the Specification fails to describe implementation details. For example, as to claim 21, the Specification does not describe a filtering logic circuit. Instead, the Specification refers only to logic for scrubbing, removing, or otherwise blocking certain types of data6 with no structural detail. The Specification does not describe an indexing logic circuit. Instead, the Specification refers only to an item indexer7 with no structural detail. Thus we refer to the exemplary claim 21 as a process claim in what follows. 6 See e.g., Spec. para. 31. 7 See e.g., Spec. para. 7. Appeal 2018-007632 Application 14/085,800 5 STEP 18 Claim 21, as a method claim, nominally recites one of the enumerated categories of eligible subject matter in 35 U.S.C. § 101. The issue before us is whether it is directed to a judicial exception without significantly more. STEP 2 The Supreme Court set forth a framework for distinguishing patents that claim laws of nature, natural phenomena, and abstract ideas from those that claim patent-eligible applications of those concepts. First, . . . determine whether the claims at issue are directed to one of those patent-ineligible concepts. If so, we then ask, “[w]hat else is there in the claims before us? To answer that question, . . . consider the elements of each claim both individually and “as an ordered combination” to determine whether the additional elements “transform the nature of the claim” into a patent-eligible application. [The Court] described step two of this analysis as a search for an “‘inventive concept’”—i.e., an element or combination of elements that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice Corp. v. CLS Bank Int’l, 573 U.S. 208, 217–18 (2014) (citations omitted) (citing Mayo Collaborative Servs. v. Prometheus Labs, Inc., 566 U.S. 66 (2012)). To perform this test, we must first determine what the claims are directed to. This begins by determining whether the claims recite one of the judicial exceptions (a law of nature, a natural phenomenon, or an abstract idea). Then, if the claims recite a judicial exception, determining whether the claims at issue are directed to the recited judicial exception, or 8 For continuity of analysis, we adopt the steps nomenclature from 2019 Revised Patent Subject Matter Eligibility Guidance, 84 Fed. Reg. 50 (Jan. 7, 2019) (“Revised Guidance”). Appeal 2018-007632 Application 14/085,800 6 whether the recited judicial exception is integrated into a practical application of that exception, i.e., that the claims “apply, rely on, or use the judicial exception in a manner that imposes a meaningful limit on the judicial exception, such that the claim is more than a drafting effort designed to monopolize the judicial exception.” Revised Guidance, 84 Fed. Reg. at 54. If the claims are directed to a judicial exception, then finally determining whether the claims provide an inventive concept because the additional elements recited in the claims provide significantly more than the recited judicial exception. STEP 2A Prong 1 At a high level, and for our preliminary analysis, we note that claim 21 recites a method, performed by some nominal apparatus, comprising receiving sales data, removing sales data, and allocating sales data to categories. Removing data is modifying data. Allocating data is rudimentary analysis. Thus, claim 21 recites receiving, modifying, and analyzing data. None of the limitations recites technological implementation details for any of these steps, but instead recite only results desired by any and all possible means. As we determine supra, although claim 21 recites structure labels for performing these steps, no structural limitations or other technological implementation details are recited. From this we see that claim 21 does not recite the judicial exceptions of either natural phenomena or laws of nature. Under Supreme Court precedent, claims directed purely to an abstract idea are patent in-eligible. As set forth in the Revised Guidance, which extracts and synthesizes key concepts identified by the courts, abstract ideas Appeal 2018-007632 Application 14/085,800 7 include (1) mathematical concepts9, (2) certain methods of organizing human activity10, and (3) mental processes11. Among those certain methods of organizing human activity listed in the Revised Guidance are commercial or legal interactions. Like those concepts, claim 21 recites the concept of managing sales and marketing. Specifically, claim 21 recites operations that would ordinarily take place in advising one to filter and categorize sales data for analysis. The advice to filter and categorize sales data for analysis involves historical sales data from at least one POS device, which is an economic act, and scrubbing the sales data, which is an act ordinarily performed in the stream of commerce. For example, claim 21 recites “receiv[ing] historical sales data from at least one POS device,” which is an activity that would take place whenever one is managing sales activity. Similarly, claim 1 recites “produce scrubbed [sales] data,” which is also characteristic of managing commercial sales. The Examiner determines the claims to be directed to a certain method of organizing human activity. Answer 7–8. The preamble to claim 21 does not recite what it is to achieve, but the steps in claim 21 result in 9 See, e.g., Gottschalk v. Benson, 409 U.S. 63, 71–72 (1972); Bilski v. Kappos, 561 U.S. 593, 611 (2010); Mackay Radio & Telegraph Co. v. Radio Corp. of Am., 306 U.S. 86, 94 (1939); SAP America, Inc. v. InvestPic, LLC, 898 F.3d 1161, 1163 (Fed. Cir. 2018). 10 See, e.g., Bilski, 561 U.S. at 628; Alice, 573 U.S. at 219-20; Ultramercial, Inc. v. Hulu, LLC, 772 F.3d 709, 715 (Fed Cir. 2014); Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1383 (Fed. Cir. 2017); In re Marco Guldenaar Holding B.V., 911 F.3d 1157, 1160–61 (Fed. Cir. 2018). 11 See, e.g., Benson, 409 U.S. at 67; CyberSource Corp. v. Retail Decisions, Inc., 654 F.3d 1366, 1371–72 (Fed. Cir. 2011); Intellectual Ventures I LLC v. Symantec Corp., 838 F.3d 1307, 1318 (Fed. Cir. 2016). Appeal 2018-007632 Application 14/085,800 8 managing sales and marketing by filtering and categorizing sales data for analysis absent any technological mechanism other than a conventional computer for doing so. As to the specific limitations, limitation 1 recites receiving data. Limitations 2 and 3 recite generic and conventional modifying and analyzing of sales data, which advise one to apply generic functions to get to these results. The limitations thus recite advice for filtering and categorizing sales data for analysis. To advocate filtering and categorizing sales data for analysis is conceptual advice for results desired and not technological operations. The Specification at paragraph 1 describes the invention as relating to increasing forecast accuracy by disambiguating point of sale data. Thus, all this intrinsic evidence shows that claim 21 recites managing sales and marketing. This is consistent with the Examiner’s determination. This in turn is an example of commercial or legal interactions as a certain method of organizing human activity because managing sales and marketing is part of commercial interaction. The concept of managing sales and marketing by filtering and categorizing sales data for analysis is one idea for monitoring sales for managerial purposes. The steps recited in claim 21 are part of how this might conceptually be premised. Our reviewing court has found claims to be directed to abstract ideas when they recited similar subject matter. Content Extraction & Transmission LLC v. Wells Fargo Bank, Nat’l Ass’n, 776 F.3d 1343, 1347 (Fed. Cir. 2014) (collecting, recognizing, and storing data fed into an ATM). Alternatively, this is an example of concepts performed in the human mind as mental processes because the steps of receiving, modifying, and Appeal 2018-007632 Application 14/085,800 9 analyzing data mimic human thought processes of observation, evaluation, judgment, and opinion, perhaps with paper and pencil, where the data interpretation is perceptible only in the human mind. See In re TLI Commc’ns LLC Patent Litig., 823 F.3d 607, 611 (Fed. Cir. 2016); FairWarning IP, LLC v. Iatric Sys., Inc., 839 F.3d 1089, 1093–94 (Fed. Cir. 2016). Claim 21, unlike the claims found non-abstract in prior cases, uses generic computer technology to perform data reception, modification, and analysis and does not recite an improvement to a particular computer technology. See, e.g., McRO, Inc. v. Bandai Namco Games Am. Inc., 837 F.3d 1299, 1314–15 (Fed. Cir. 2016) (finding claims not abstract because they “focused on a specific asserted improvement in computer animation”). As such, claim 21 recites receiving, modifying, and analyzing data, and not a technological implementation or application of that idea. From this we conclude that at least to this degree, claim 21 recites managing sales and marketing by filtering and categorizing sales data for analysis, which is a commercial and legal interaction, one of certain methods of organizing human activity identified in the Revised Guidance, and, thus, an abstract idea. STEP 2A Prong 2 The next issue is whether claim 21 not only recites, but is more precisely directed to this concept itself or whether it is instead directed to some technological implementation or application of, or improvement to, this concept i.e. integrated into a practical application.12 12 See, e.g., Alice, 573 U.S. at 223, discussing Diamond v. Diehr, 450 U.S. 175 (1981). Appeal 2018-007632 Application 14/085,800 10 At the same time, we tread carefully in construing this exclusionary principle lest it swallow all of patent law. At some level, “all inventions ... embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.” Thus, an invention is not rendered ineligible for patent simply because it involves an abstract concept. “[A]pplication[s]” of such concepts “ ‘to a new and useful end,’ ” we have said, remain eligible for patent protection. Accordingly, in applying the § 101 exception, we must distinguish between patents that claim the “ ‘buildin[g] block[s]’ ” of human ingenuity and those that integrate the building blocks into something more. Alice, 573 U.S. at 217 (citations omitted). Taking the claim elements separately, the operation performed by the computer at each step of the process is expressed purely in terms of results, devoid of implementation details. Step 1 is a pure data gathering step. Limitations describing the nature of the data do not alter this. Step 2 recites basic conventional data operations such as generating, updating, and storing data. Steps 3 recites generic computer processing expressed in terms of results desired by any and all possible means and so present no more than conceptual advice. All purported inventive aspects reside in how the data is interpreted and the results desired, and not in how the process physically enforces such a data interpretation or in how the processing technologically achieves those results. Viewed as a whole, Appellant’s claim 21 simply recites the concept of managing sales and marketing by filtering and categorizing sales data for analysis as performed by a generic computer apparatus. This is no more than conceptual advice on the parameters for this concept and the generic computer processes necessary to process those parameters, and do not recite any particular implementation. Appeal 2018-007632 Application 14/085,800 11 Claim 21 does not, for example, purport to improve the functioning of the computer itself. Nor does it effect an improvement in any other technology or technical field. The 12+ pages of specification do not bulge with disclosure, but only spell out different generic equipment13 and parameters that might be applied using this concept and the particular steps such conventional processing would entail based on the concept of managing sales and marketing by filtering and categorizing sales data for analysis under different scenarios. They do not describe any particular improvement in the manner a computer functions. Instead, claim 21 at issue amounts to nothing significantly more than an instruction to apply managing sales and marketing by filtering and categorizing sales data for analysis using some unspecified, generic computer components. Under our precedents, that is not enough to transform an abstract idea into a patent- eligible invention. See Alice, 573 U.S. at 225–26. None of the limitations reflects an improvement in the functioning of a computer, or an improvement to other technology or technical field, applies or uses a judicial exception to effect a particular treatment or prophylaxis for a disease or medical condition, implements a judicial exception with, or uses a judicial exception in conjunction with, a particular machine or manufacture that is integral to the claim, effects a transformation or reduction of a particular article to a different state or thing, or applies or uses the judicial exception in some other meaningful way beyond generally linking the use of the judicial exception to a particular technological 13 The Specification describes a POS device and network server. Spec. para. 22. Appeal 2018-007632 Application 14/085,800 12 environment, such that the claim as a whole is more than a drafting effort designed to monopolize the exception. We conclude that claim 21 is directed to achieving the result of managing sales and marketing by advising one to filter and categorize sales data for analysis, as distinguished from a technological improvement for achieving or applying that result. This amounts to commercial or legal interactions, which fall within certain methods of organizing human activity that constitute abstract ideas. The claim does not integrate the judicial exception into a practical application. STEP 2B The next issue is whether claim 21 provides an inventive concept because the additional elements recited in the claim provide significantly more than the recited judicial exception. The introduction of a computer into the claims does not generally alter the analysis at Mayo step two. [T]he mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention. Stating an abstract idea “while adding the words ‘apply it’” is not enough for patent eligibility. Nor is limiting the use of an abstract idea “‘to a particular technological environment.’” Stating an abstract idea while adding the words “apply it with a computer” simply combines those two steps, with the same deficient result. Thus, if a patent’s recitation of a computer amounts to a mere instruction to “implemen[t]” an abstract idea “on . . . a computer,” that addition cannot impart patent eligibility. This conclusion accords with the preemption concern that undergirds our § 101 jurisprudence. Given the ubiquity of computers, wholly generic computer implementation is not generally the sort of “additional featur[e]” that provides any “practical assurance that the process is more than a drafting effort designed to monopolize the [abstract idea] itself.” Appeal 2018-007632 Application 14/085,800 13 Alice, 573 U.S. at 223–24 (citations omitted). “[T]he relevant question is whether the claims here do more than simply instruct the practitioner to implement the abstract idea [] on a generic computer.” Alice, 573 U.S. at 225. They do not. Taking the claim elements separately, the function performed by the computer element at each step of the process is purely conventional. Using a computer apparatus for receiving, modifying, and analyzing data amounts to electronic data query and retrieval—one of the most basic functions of a computer. All of these functions are generic, routine, conventional computer activities that are performed only for their conventional uses. See Elec. Power Grp. LLC v. Alstom S.A., 830 F.3d 1350, 1353 (Fed. Cir. 2016). See also In re Katz Interactive Call Processing Patent Litig., 639 F.3d 1303, 1316 (Fed. Cir. 2011) (“Absent a possible narrower construction of the terms ‘processing,’ ‘receiving,’ and ‘storing,’ . . . those functions can be achieved by any general purpose computer without special programming”). None of these activities is used in some unconventional manner nor does any produce some unexpected result. The Appellant does not contend it invented any of these activities. In short, each step does no more than require a generic computer to perform generic computer functions. As to the data operated upon, “even if a process of collecting and analyzing information is ‘limited to particular content’ or a particular ‘source,’ that limitation does not make the collection and analysis other than abstract.” SAP America, 898 F.3d at 1168. Considered as an ordered combination, the computer components of the Appellant’s claim 21 add nothing that is not already present when the steps are considered separately. The sequence of data reception- Appeal 2018-007632 Application 14/085,800 14 modification-analysis is equally generic and conventional. See Ultramercial, 772 F.3d at 715 (sequence of receiving, selecting, offering for exchange, display, allowing access, and receiving payment recited an abstraction), Inventor Holdings, LLC v. Bed Bath & Beyond, Inc., 876 F.3d 1372, 1378 (Fed. Cir. 2017) (sequence of data retrieval, analysis, modification, generation, display, and transmission), Two-Way Media Ltd. v. Comcast Cable Commc’ns, LLC, 874 F.3d 1329, 1339 (Fed. Cir. 2017) (sequence of processing, routing, controlling, and monitoring). The ordering of the steps is therefore ordinary and conventional. We conclude that claim 21 does not provide an inventive concept because the additional elements recited in the claim do not provide significantly more than the recited judicial exception. REMAINING CLAIMS Claim 21 is representative. Its dependent claims merely describe process parameters. We conclude that the claims at issue are directed to a patent-ineligible concept itself, and not to the practical application of that concept. Again, although all claims are nominal structural claims, they are no different from the method claims in substance. The method claims recite the abstract idea implemented on a generic computer; the system claims recite a handful of generic computer components configured to implement the same idea. This Court has long “warn[ed] ... against” interpreting § 101“in ways that make patent eligibility ‘depend simply on the draftsman’s art.’ Alice, 573 U.S. at 226. As a corollary, the claims are not directed to any particular machine. Appeal 2018-007632 Application 14/085,800 15 LEGAL CONCLUSION From these determinations we further determine that the claims do not recite an improvement to the functioning of the computer apparatus itself or to any other technology or technical field, a particular machine, a particular transformation, or other meaningful limitations. From this we conclude the claims are directed to the judicial exception of the abstract idea of certain methods of organizing human activity as exemplified by the commercial and legal interaction of managing sales and marketing by advising one to filter and categorize sales data for analysis, without significantly more. APPELLANT’S ARGUMENTS As to the Appellant’s Appeal Brief arguments, we adopt the Examiner’s determinations and analysis from Answer 3–18 and reach similar legal conclusions. We now turn to the Reply Brief. We are not persuaded by the Appellant’s argument that “[w]hen the POS device or terminal with its inherent problems is properly recognized as part of the claimed subject matter, it is clear that the claims recite a solution to a technical problem specifically introduced by the POS device or terminal.” Reply Br. 1. This argument is follow up to that in the Appeal Brief. Clerks using POS devices use the devices to record sales. A problem arises when a clerk using the POS device does not know the specific code for an item or cannot locate the correct button on the POS device. In this circumstance, the clerk cannot correctly categorize the sale. Instead, the clerk records the sale as a miscellaneous item, i.e., as an undifferentiated sale. This problem is inherent in the POS device and, hence, the resulting data. The clerk must know the specific language of the POS device (the codes or buttons) to properly record the transaction. Without that knowledge, the sale cannot be correctly categorized. Even a clerk with perfect knowledge of Appeal 2018-007632 Application 14/085,800 16 the identity of an item cannot correctly categorize the sale without the knowledge of how the POS device wants the information. A clerk that can distinguish a chocolate chip cookie and a gluten-free chocolate chip cookie cannot properly record the sale without the knowledge specific to the POS device of what code or what button to press. Appeal Br. 4–5 (citations omitted). This argument in turn follows the statement of the problem to be solved in the Specification. FF 01–02. The problem for the Appellant is that this states an accounting problem, not a technological problem. The problem as stated is no more than classic bookkeeping miscoding from a chart of accounts, either due to clerical error or insufficiency of the chart. The classic solutions are to expand the chart and correct the classification, dump the amount in some miscellaneous account, or bury the amount in some existing classification for being de minimis. The Appellant’s solution is a variation on this third avenue by apportioning the amount over plural existing accounts. The Appellant essentially contends that because a chart of accounts is not sufficiently expansive, its programming into a POS device inherits such defect, and therefore the problem is technological because no data in the POS can solve the issue. This is instead an error in the data made available, which is present irrespective of hardware. Any purported improvement is to information, not technology. “[T]he claims are focused on providing information to traders in a way that helps them process information more quickly, not on improving computers or technology. . . . . The ‘tool for presentation” here . . . is simply a generic computer.’” Trading Techs. Int’l, Inc. v. IBG LLC, 921 F.3d 1378, 1384–85 (Fed. Cir. 2019)(citations omitted). The tool here is not even a generic POS device, but instead some generic processor apparatus that scrubs and allocates the data. Appeal 2018-007632 Application 14/085,800 17 We are not persuaded by the Appellant’s argument that “[i]n each independent claim, the historical data is from a POS device. The Examiner continues to omit reference to the POS device or terminal as the source of the data in analyzing the alleged abstract idea.” Reply Br. 1. As we determined supra, data source cannot confer eligibility. See SAP America supra. We are not persuaded by the Appellant’s argument that the data from the POS device or terminal inherently has error resulting from limitations of the POS device or terminal. A person with perfect knowledge reading the differentiation of products, i.e., someone who could communicate perfect sales information if not using a POS device or terminal, may still create undifferentiated sales data due to a lack of knowledge of the POS device or terminal. The Examiner' [sic] reference to data from a POS feed without reference to a POS device or terminal removes this essential character of the data. Reply Br. 1–2. This is a variation on the first argument supra and is equally unpersuasive here. We are not persuaded by the Appellant’s argument that: The Examiner alleges various generic components including a POS device. Answer at 12-14. However, a POS device is not a generic component. It is not a general-purpose processor. As explained in section IV-C-1 (pages 4-6) of the Appeal Brief, a POS device has particular limitations. If the POS device were a generic computer component, it would be able to receive data in any form. An operator with perfect knowledge of the differentiation of products could enter enough information to sufficiently differentiate the sales data from a generic computer. However, the historical sales data is not from a generic computer. It is from a POS device with all of its associated limitations. Thus, the POS device is not a generic computer component. Its presence adds significantly more to the claims. Appeal 2018-007632 Application 14/085,800 18 Necessarily, it limits the claims from receiving sales data from a generic computer. Reply Br. 2. A Point of Sales device is a generic label for a device used at the point of sale. The Appellant neither recites structure in the claims nor describes structure in the Specification that would render such a device non- generic. Indeed, the Specification describes using such a device in the conventional manner and for its conventional purpose. The entire invention only operates upon the generic data that such a generic device produces and not with or upon a Point of Sale device per se. See Content Extraction & Transmission (collecting, recognizing, and storing data fed into an ATM). We are not persuaded by the Appellant’s argument that “the fact that a POS device and the data from it may be known in the art does not itself transform the claims into non-statutory subject matter.” Reply Br. 3. The Appellant’s argument gets the pertinent issue in reverse. The issue is whether reciting generic and conventional hardware for their conventional purpose used in their conventional manner can turn an abstract inventive idea into eligible subject matter. It cannot. Upon examining claim 1 and the specification . . . , we find no “inventive concept” that transforms the abstract idea of out-of- region delivery of regional broadcasting into a patent-eligible application of that abstract idea. The claim simply recites the use of generic features of cellular telephones, such as a storage medium and a graphical user interface, as well as routine functions, such as transmitting and receiving signals, to implement the underlying idea. That is not enough. Affinity Labs of Texas, LLC v. DIRECTV, LLC, 838 F.3d 1253, 1262–1263 (Fed. Cir. 2016). The Appellant further argues that the asserted claims are akin to the claims found patent-eligible in DDR Holdings, LLC v. Hotels.com, Appeal 2018-007632 Application 14/085,800 19 L.P. 773 F.3d 1245 (Fed. Cir. 2014). Reply Br. 3. In DDR Holdings, the Court evaluated the eligibility of claims “address[ing] the problem of retaining website visitors that, if adhering to the routine, conventional functioning of Internet hyperlink protocol, would be instantly transported away from a host’s website after ‘clicking’ on an advertisement and activating a hyperlink.” Id. at 1257. There, the Court found that the claims were patent eligible because they transformed the manner in which a hyperlink typically functions to resolve a problem that had no “pre-Internet analog.” Id. at 1258. The Court cautioned, however, “that not all claims purporting to address Internet-centric challenges are eligible for patent.” Id. For example, in DDR Holdings the Court distinguished the patent-eligible claims at issue from claims found patent-ineligible in Ultramercial. See id. at 1258–59 (citing Ultramercial, 772 F.3d at 715–16). As noted there, the Ultramercial claims were “directed to a specific method of advertising and content distribution that was previously unknown and never employed on the Internet before.” Id. at 1258 (quoting Ultramercial, 772 F.3d at 715–16). Nevertheless, those claims were patent ineligible because they “merely recite[d] the abstract idea of ‘offering media content in exchange for viewing an advertisement,’ along with ‘routine additional steps such as updating an activity log, requiring a request from the consumer to view the ad, restrictions on public access, and use of the Internet.’” Id. The Appellant’s asserted claims are analogous to claims found ineligible in Ultramercial and distinct from claims found eligible in DDR Holdings. The ineligible claims in Ultramercial recited “providing [a] media product for sale at an Internet website;” “restricting general public Appeal 2018-007632 Application 14/085,800 20 access to said media product;” “receiving from the consumer a request to view [a] sponsor message;” and “if the sponsor message is an interactive message, presenting at least one query to the consumer and allowing said consumer access to said media product after receiving a response to said at least one query.” 772 F.3d at 712. Similarly, the Appellant’s asserted claims recite receiving, modifying, and analyzing data. This is precisely the type of Internet activity found ineligible in Ultramercial. We are not persuaded by the Appellant’s argument that “[t]he Examiner cannot remove elements and consider only what is left.” Reply Br. 3. The Examiner does not remove elements. Instead, the Examiner treats generic elements used in their conventional manner for their conventional purpose as such in the analysis. We are not persuaded by the Appellant’s argument that the claims contain an inventive concept that is also found in the specific ordered combination of the limitations, similar to the Federal Circuit's findings in BASCOM (BASCOM Global Internet v. AT&T Mobility LLC, 827 F.3d 1341 (Fed. Cir. 2016)). Reply Br. 4–5. Initially, we remind the Appellant that BASCOM did not find claims eligible on the substance, but rather that the Appellees did not provide sufficient evidence to support a 12(b)(6) motion to dismiss in which facts are presumed in the non-movant’s favor. The key fact in BASCOM was the presence of a structural change in “installation of a filtering tool at a specific location, remote from the end- users, with customizable filtering features specific to each end user. This design gives the filtering tool both the benefits of a filter on a local computer and the benefits of a filter on the ISP server.” BASCOM, 827 F.3d at 1350. The instant claims have no analogous structural benefit. Appeal 2018-007632 Application 14/085,800 21 CONCLUSIONS OF LAW The rejection of claims 21–40 under 35 U.S.C. § 101 as directed to a judicial exception without significantly more is proper. CONCLUSION The rejection of claims 21–40 is affirmed. In summary: Claims Rejected 35 U.S.C. § Basis Affirmed Reversed 21–40 101 Eligibility 21–40 No time period for taking any subsequent action in connection with this appeal may be extended under 37 C.F.R. § 1.136(a). See 37 C.F.R. § 1.136(a)(1)(iv) (2011). AFFIRMED Copy with citationCopy as parenthetical citation